ORDER :

The ‘Resolution Process’ having failed, the ‘Resolution Professional’ filed an application under Section 33 of the ‘Insolvency and Bankruptcy Code, 2016’ (‘I&B’ for short) before the Adjudicating Authority (National Company Law Tribunal), Single Bench, Chennai, who passed the impugned order of liquidation dated 26th February, 2019.

2. Learned counsel for the appellants, who are the Directors of ‘M/s. Gemini Communication Limited’- (‘Corporate Debtor’) submitted that the liquidation value of the property of the ‘corporate debtor’ is Rs.3 Crores whereas the ‘Promoters’ are willing to pay a sum of Rs.30 Crores. However, such submission cannot be accepted in view of their non-entitlement under Section 29A of the I&B Code.

3. For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 28th February, 2019.

4. However, as order of ‘Liquidation’ has been passed by the Adjudicating Authority, we direct the ‘Liquidator’ to act in terms with the decision of ‘Y. Shivram Prasad vs. S. Dhanapal & Ors.’ in ‘Company Appeal (AT) (Insolvency) No. 224 of 2018 etc.’ wherein this Appellate Tribunal vide order dated 27th February, 2019 observed and directed as follows :

“12. The aforesaid issue fell for consideration before this Appellate Tribunal in “S.C. Sekaran v. Amit Gupta & Ors.- Company Appeal (AT) (Insolvency) Nos. 495 & 496 of 2018” wherein this Appellate Tribunal having noticed the decision of the Hon’ble Supreme Court in “Swiss Ribbon Pvt. Ltd. & Anr. v. Union of India & Ors. (Supra) and “Meghal Homes Pvt. Ltd.” observed and held:

“5. We have heard the learned counsel for the parties and perused the record. The Hon’ble Supreme Court in ‘Swiss Ribbons Pvt. Ltd. & Anr. vs. Union of India & Ors. – Writ Petition (Civil) No. 99 of 2018’ by its judgment dated 25th January, 2019, observed as follows:

“11. ………What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. [See ArcelorMittal (supra) at paragraph 83, footnote 3]. (Emphasis added)

12. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters /those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor‘s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.”

In ‘Arcelormittal India Pvt. Ltd. vs. Satish Kumar Gupta & Ors.’ at paragraph 83, footnote 3 is mentioned. The Hon’ble Supreme Court noticed that :

“3. Regulation 32 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, states that the liquidator may also sell the corporate debtor as a going concern.”

6. In ‘Meghal Homes Pvt. Ltd. vs. Shree Niwas Girni K.K. Samiti & Ors. – (2007) 7 SCC 753” the Hon’ble Supreme Court observed and held as follows:

“33. The argument that Section 391 would not apply to a company whic